IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Delphine Henry,

Plaintiff

 v.

Abbott Laboratories,

Defendant

:

:

:

:

:

Civil Action 2:12-cv-00841

Judge Smith

Magistrate Judge Abel

Report and Recommendation

This matter is before the Magistrate Judge on plaintiff Delphine Henry’s October

29, 2013 motion to reinstate her case (doc. 17) and her November 21, 2013 motion for

leave to file a reply or supplemental motion for relief from judgment instanter (doc. 20).

Background. This action was originally filed on September 13, 2012. At the time

the complaint was filed, plaintiff was represented by attorney Michael Todd Bivens. On

October 24, 2012, Mr. Bivens filed a motion to withdraw as counsel. See doc. 9. Mr.

Bivens provided a last known address and telephone number for plaintiff. Plaintiff

signed an “Acknowledgment of Withdrawal” which indicated that the motion to

withdraw had been served by regular mail to plaintiff at 293 Preswicke Mill, Blacklick,

Ohio. On October 26, 2012, the motion was granted, and plaintiff was instructed to

retain new counsel within 28 days or to file a statement with the Court indicating her

intent to represent herself. See doc. 10. 

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On November 16, 2012, a preliminary pretrial conference was noticed. The notice

was sent to plaintiff at the Preswicke Mill address. On November 16, 2012, plaintiff

telephoned my office and requested additional time in which to locate new counsel. The

Order granting her request for additional time stated that the preliminary pretrial

conference would go forward as scheduled. The Order was also sent to the Preswicke

Mill address. See doc. 12.

Plaintiff failed to appear for the preliminary pretrial conference or respond to the

Court’s Order to Show Cause. On January 16, 2013, this case was dismissed. 

Arguments of the Parties. Plaintiff maintains that it was not until October 2013

that she learned of the dismissal of her case. Plaintiff submitted an affidavit detailing

her interactions with her former attorney, William Patmon, III. Plaintiff hired Mr.

Patmon in December 2011. Pl.’s Aff. at ¶ 1. Plaintiff met Mr. Patmon at various times in

2011 and 2013. Id. at ¶3. Plaintiff received her right to sue letter in June 2012. Id. at ¶4.

On September 12, 2012, plaintiff’s husband received an email from Mr. Patmon’s office

manager advising plaintiff that she had until September 13, 2012 in which to file a

lawsuit and that attorney Michael Bivens would be filing the case. Id. at ¶5. Mr. Patmon

informed plaintiff that he could no longer represent her because he was being

appointed to the Civil Rights Commission and that Mr. Bivens would be representing

her. Id. at ¶6. Mr. Bivens filed the case on September 13, 2012, and he filed a motion to

withdraw as counsel on October 24, 2012. Id. at ¶¶7-8.

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After Mr. Bivens withdrew, plaintiff states that she contacted Mr. Patmon, who

advised her to ask the Court for additional time in which to locate a new attorney. Id. at

¶10. When plaintiff was unable to locate new counsel, Mr. Patmon agreed to represent

her and indicated his belief that he could negotiate a settlement. Id. at ¶13. Plaintiff met

with a paralegal in Mr. Patmon’s office in February 2013 and had documents associated

with her case sent to him. Id. at ¶¶15-17. Plaintiff had periodic contact with Mr.

Patmon’s office. Id. at ¶18. In October 2013, Mr. Patmon informed plaintiff that the

Court had been sending orders to her previous address and that he needed documents

demonstrating that she no longer lived at that address. He also told plaintiff he was still

trying to reach a settlement. Id. at ¶21. On October 25, 2013, Mr. Patmon gave her a

letter stating that her case had been dismissed and advised her to file a motion to

reinstate the case. Id. at ¶23. From November 2012 until October 25, 2013, plaintiff

believed that Mr. Patmon was representing her in this case. Id. at ¶26. Plaintiff was not

aware that Mr. Patmon had not filed a notice of appearance in this case. Id. at ¶28.

Plaintiff seeks relief under Rule 60(b)(1) of the Federal Rules of Civil Procedure.

Plaintiff maintains that she did not willfully ignore the Court’s order and that her

failure to act was the result of mistake, inadvertence and/or excusable neglect. Plaintiff

maintains that when she learned that Mr. Bivins was withdrawing from the case, she

took immediate action and sought additional time in which to find an attorney.

Plaintiff further maintains that she did not understand the implication of the last

known address listed on Mr. Biven’s motion to withdrawal. Furthermore, plaintiff

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believed that she was being represented by Mr. Patmon, and she believed that her case

was proceeding accordingly. Anytime plaintiff was personally aware of something that

she was supposed to do, she took prompt action. Plaintiff further argues that her case

falls within the circumstances contemplated by Rule 60(b)(6). Here, the neglect was on

the part of plaintiff’s counsel, not plaintiff warranting extraordinary relief. 

Defendant argues that plaintiff’s attempt to reinstate her lawsuit should be

denied because she failed to offer sufficient justification for why she failed to keep the

Court informed as to her current address and why she signed a document filed with the

Court indicating a purportedly wrong address. Defendant also argues that plaintiff’s

allegations concerning Mr. Patmon are without merit. Plaintiff failed to attach an

engagement letter or other proof that she complied with the Court’s Order that she

retain new counsel. Defendant also contends that the gross neglect on the part of

counsel is generally not enough to set aside a judgment under Rule 60(b)(1) on the basis

of excusable neglect. When a client chooses an attorney as her representative, she

cannot avoid the consequences of the acts or omissions of her agent.

Discussion. Rule 60(b)(1) permits a court to relieve a party from a final judgment

order or proceeding on the basis of mistake inadvertence, surprise, or excusable neglect.

Here, plaintiff’s conduct constitutes excusable neglect. Generally, relief should be

granted under Rule 60(b)(6) only in unusual circumstances where principles of equity

mandate relief, Olle v. Henry & Wright Corp., 910 F. 2d 357, 365 (6th Cir. 1990), and the

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district court’s discretion to deny relief under 60(b)(6) is particularly broad. McDowell v.

Dynamics Corp., 931 F. 2d 380, 383 (6th Cri. 1991). 

Although it is the responsibility of litigants to keep the Court informed as to their

current contact information, plaintiff believed that she was represented by counsel and

had no reason to expect that the Court would be contacting her. It appears that plaintiff

never received any of the orders that were mailed to her. Plaintiff asserts that given her

interaction with the attorney she believed was representing her in this action, she

believed that her case was proceeding as it should. Although plaintiff fails to identify

why she failed to correct the address provided to the Court in the motion to

withdrawal, once this error was made, she received no further communication alerting

her to the fact that no attorney had filed a notice of appearance on her behalf. As a

result, plaintiff was not aware of the scheduled preliminary pretrial conference, and she

assumed that any communications from the Court would be sent to Mr. Patmon.

The law in the United States Court of Appeals for the Sixth Circuit is that:

Relief from a judgment pursuant to Rule 60(b)(6) “is appropriate to

accomplish justice in an extraordinary situation....” Overbee v. Van Waters

& Rogers, 765 F.2d 578, 580 (6th Cir.1985). “[A] motion made under Rule

60(b)(6) is addressed to the trial court's discretion which is ‘especially

broad’ given the underlying equitable principles involved.” Hopper v.

Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989) (citing

Overbee, 765 F.2d at 580; Matter of Emergency Beacon Corp., 666 F.2d 754, 760

(2d Cir.1981)). Despite the “broad” discretion that courts enjoy to grant

relief under Rule 60(b)(6), such relief is warranted “only in exceptional or

extraordinary circumstances which are not addressed by the first five

numbered clauses of [Rule 60(b)].” Hopper, 867 F.2d at 294.

Johnson v. Dellatifa, 357 F.3d 539, 543 (6th Cir. 2004).

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The question here is whether plaintiff Henry is entitled to relief from the

judgment because she did all that she could reasonably be expected to do but was

allegedly misled by her attorney into believing he was looking out for her interests.

Defendant has offered no evidence to controvert Henry’s allegations that Patmon

misled her into believing he was handling the lawsuit for her. Under these

circumstances, a plaintiff has made a sufficient showing for the court to grant the Rule

60(b)(6) motion to vacate judgment. Fuller v. Quire, 916 F.2d 358, 361 (6th Cir. 1990);

Doyle v. Mutual of Omaha Ins. Co., 504 Fed.Appx. 380, **4 (6th Cir. Nov. 2, 2012). But see,

Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845 (7th Cir. 2009).

Conclusion. For the reasons stated above, the Magistrate Judge RECOMMENDS

that plaintiff Delphine Henry’s October 29, 2013 motion to reinstate her case (doc. 17)

and her November 21, 2013 motion for leave to file a reply or supplemental motion for

relief from judgment instanter (doc. 20) be GRANTED.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

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Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);

United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,

380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not

raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel 

United States Magistrate Judge

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